Fertility Law: Overview of Assisted Human Reproduction Act

Technologically assisted reproduction or reproductive technology refers to surrogacy and gamete donation (ex: egg and/or sperm donation).

In 1987, the Royal Commission on New Reproductive Technologies was created. In 1989, the Prime Minister at the time (Brian Mulroney) commissioned the "Baird Commission". The Commission was mandated to report on the medical and scientific developments relating to new reproductive technologies. The Commission was to look at social, ethical, health, legal, economic, research, and public interest considerations. The Commission took four years and issued a report with many policy recommendations. One of which was that the federal government develop legislation to address the report.

The Assisted Human Reproduction Act (“AHRA”) are federal laws that were ultimately enacted in March 2004. Its Regulations, or rules used to carry out the intention of the AHRA that have the force of law, are relevant. Of note, among others, are:

• Section 8 Consent Regulations; and,
• Section 12 Reimbursement Related to Assisted Human Reproduction.

Health Canada is the federal authority that is responsible for administering and enforcing the AHRA and its regulations.

The prohibited activities in sections 5 to 9 of the AHRA include:

• 5(1)(e) - Prohibition on knowingly performing a procedure or administering any thing that would ensure or increases the chances that an embryo will be of a particular sex, or that would identify the sex of an embryo that exists outside the body of a human being, except to prevent, diagnose, or treat a sex-linked disorder or disease;
• 6(1) – Prohibition on paying consideration to a female to be a surrogate mother, offer to pay such consideration, or advertise that it will be paid;
• 7(1) – Prohibition on purchasing, offering to purchase, or advertising for the purchase of sperm or ova from a donor to a person acting on behalf of a donor;
• Further, subsection 7(4) clarifies that the term purchase in 7(1) includes, "to acquire in exchange for property or services."
• 8(1) – Prohibition on making use of human reproductive material to create an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its use for that purpose;
• 8(3) - Prohibition on making use of an in vitro embryo for any purpose unless the donor has given written consent, in accordance with the regulations, to its use for that purpose.

There are other, important prohibitions set out in the AHRA.

There are serious penalties if a person or organization does not follow the AHRA and its Regulations. The penalties are found in sections 60 and 61 of the AHRA.

Further, according to section 64 of the AHRA, the Minister may notify any “interested authority”  (ex: College of Physicians and Surgeons), of the identity of the person charged with an offence under the Act, or who there are reasonable grounds to believe may have breached any professional code of conduct.

Contact Ashley Krol at Krol & Krol at 905.707.3370 or by e-mail, if you have questions about the AHRA or reproductive technologies.